Something that’s implicit in a lot of defenses of the Citizens United ruling I’ve seen in the past day is probably worth noting explicitly: The ban on independent corporate/union expendituures for “electioneering communications” that the court struck down was actually quite narrow. Basically it covered TV and radio advertising, and didn’t touch myriad other forms of political persuasion that rely equally on corporate money. Political magazines, books, radio programs, Web sites, TV shows, theatrical films, and so on are all put out by corporations that, in many cases, take money from still other corporations. Mostly we’ve been pointing this out as a kind of reductio: “Your argument works exactly as well for all of these other forms of speech, but nobody thinks a ban on the New York Times would be constitutional just because it’s published by a corporation.” (The responses to this seem to consist of some very confused ideas about what the word “press” in the First Amendment means.)
But I think it’s probably worth probing the underlying intuition here: Why is it that so many people who clearly do think books and magazines and talk radio shows enjoy unambiguous constitutional protection, despite being corporate funded or operated, are simultaneously absolutely sure that paid broadcast spots are in an utterly different category? If one is above all concerned with exacerbating the translation of economic inequality into political inequality, it seems rather odd. In effect, it means you only get to use your corporate money to get your agenda on the airwaves if (like GE or Time Warner) you’re big enough to buy them wholesale. But that’s OK, because you can pump money into all those other means of trying to influence voters; it’s just broadcast advertising that’s out. So I’d like to flip the reductio question around and ask: Given that people seem to mostly agree that all this other stuff constitutes protected political speech, why do so many people have such a different attitude about paid ads?
My hunch is that it has something to do with the imagined audience. Political content is generally sought out and consumed by people who are already politically engaged and informed, and probably have some settled partisan commitments already. Broadcast ads basically deliver a vague positive or negative association, maybe by force of sheer repetition, to people who might not otherwise be paying any attention. So there’s a temptation not to think of it as speech—at even a debased sort of attempt at reasoned persuasion—but rather as a kind of low-grade brainwashing. That might not be far wrong, but I dislike the idea of importing a pessimistic view of our savvy as citizens into our thinking about the protection due political speech, even where the pessimism is defensible.